Jordan Copeland Comments on the Proposed Guidelines for Student Expression

(The following comments were made by Jordan Copeland at the August 24, 2026 meeting of the Board of Education) 

I've spoken about the Guidelines for Student Expression twice before, so tonight I want to focus on binding legal precedent that I think presents a serious problem with the guidelines.

As reiterated by the Second Circuit, which covers Scarsdale, in Guiles v. Marineau (2006), if student speech is school-sponsored, Hazelwood gives the District broader authority to regulate it for legitimate educational or pedagogical reasons. But for a student’s personal expression that isn’t vulgar or subject to another recognized exception, Tinker applies, and the District generally needs a reasonable forecast of material and substantial disruption. Hazelwood applies “only when the student speech is ‘school-sponsored’ or when a reasonable observer would believe it to be so sponsored.”

That's important because the proposed guidelines appear to use a different test. They don't ask whether the speech is school-sponsored. They ask whether the activity is school-sponsored and whether the student is an "active participant.” Those are two different standards in important ways.

Examples of school-sponsored speech that can clearly be regulated under Hazelwood are a student's article in the school newspaper, a student's lines in a school play, or an approved graduation address. But a student's personal political button while displaying artwork at an exhibition doesn’t become school-sponsored speech because the student is an "active participant." Neither is a football player's kneeling as a silent political gesture, or a student's political clothing at prom. No reasonable observer would think the District was speaking through that student's button, gesture, or clothing; the school did not sponsor those expressions and they could not reasonably be viewed as bearing the school's imprimatur.

Guiles is particularly relevant because it highlights this distinction. A student wore a political T-shirt to school and was disciplined. The Second Circuit held that Hazelwood didn't apply because the school didn't sponsor the shirt and the shirt couldn't reasonably be viewed as bearing the school's imprimatur. It therefore applied Tinker and held that the school violated the student's First Amendment rights because there was no substantial disruption.

So there's a very specific question that you should have answered to your satisfaction by District counsel before proceeding with these guidelines: What is the legal authority for replacing the Second Circuit's distinction between school-sponsored speech and personal student speech with a distinction based on whether the student is an "active participant" in a school-sponsored activity?

If you don’t get a satisfactory answer to this, I think you should directly harmonize the guidelines to the appropriate legal standard so the District is on stronger legal ground.

Best,
Jordan Copeland
45 Woods Lane